Kumar (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr Kumar concerning the cancellation of his Student (Temporary) (Class TU) visa, subclass 600. The grounds for cancellation were based on Mr Kumar providing incorrect information and bogus documents in his visa application, specifically relating to his work history. Mr Kumar conceded the grounds for cancellation but argued that the delegate should have exercised discretion not to cancel his visa.

The Tribunal was required to determine whether the delegate's decision to cancel Mr Kumar's visa was the correct or preferable decision. This involved assessing whether Mr Kumar had provided comprehensive, consistent, and plausible explanations for the discrepancies in his application, particularly concerning his work history and the signatures on associated documents, and whether his age and vulnerability were relevant factors in the exercise of discretion.

The Tribunal found that Mr Kumar had provided credible explanations for the issues raised, supported by forensic examination of signatures which corroborated his denials of working at a particular workplace or signing certain documents. It was noted that Mr Kumar's agent had acted against his instructions by filling a gap in his study and work history. Despite Mr Kumar's initial intention to study automotive mechanics, his application specified cookery, and he was advised by his agent that he could change courses upon arrival in Australia. Although his enrolment in the cookery course was cancelled, he later enrolled in an automotive course before his visa was cancelled. The Tribunal concluded that Mr Kumar's explanations were comprehensive, consistent, and plausible, and that his age and vulnerability were relevant considerations.

Consequently, the Tribunal set aside the delegate's decision to cancel Mr Kumar's visa.